DR. JOSEPH NWOBIKE, SAN v. FEDERAL REPUBLIC OF NIGERIA
(2019)LCN/12751(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 27th day of February, 2019
CA/L/856C/2018(R)
RATIO
APPEAL: INADVERTENCE OF COUNSEL TO APPEAL
“…The burden of proving the alleged inadvertence of counsel lies on this applicant. He has to prove the existence of such inadvertence of counsel resulting in this crass indiligence or inordinate delay to appeal a decision after over 21 years, in order to succeed in this application: Section 132 of the Evidence Act, 2011. The burden of first proving the existence or nonexistence of the alleged inadvertence of counsel lies on this applicant, who would fail if no evidence at all were produced on either side: Section 133 Evidence Act. The burden of first introducing this prima facie evidence…falls on the applicant. The reason is obvious: what is alleged without proof can be denied without proof. The Respondent has no burden of disproving any assertion of fact, requiring proof, that is not proved. It is only when a party, who has the initial burden of leading evidence on a particular issue, does so prima facie that he throws the burden of rebutting that evidence on the defendant or respondent to refute or rebut: ESEIGBE v AGHOLOR (1993) 9 NWLR (PT 316) 128 (SC) at 144.” PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
GABRIEL OMONIYI KOLAWOLE Justice of The Court of Appeal of Nigeria
Between
DR. JOSEPH NWOBIKE, SAN Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA Respondent(s)
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.(Delivering the Lead Ruling):
This is an appeal flowing from the Judgment of the Lagos State High Court delivered on the 30th of April, 2018 in suit No: ID/2516C/2016 in which the applicant seeks to cross appeal the said judgment, seek an order permitting the Cross Appellant to rely on and use the Record of Appeal compiled by the Cross Respondent and transmitted to this Court by the lower Court and also seek for an order deeming the Notice of Appeal as properly filed and served, via an application filed on 17th October, 2018.
The application is supported by an 11 paragraph affidavit deposed to by Rotimi Oyedepo Iseoluwa prosecuting counsel together with a copy of the Notice of cross appeal attached.
The grounds for the Application, is that they are desirous of prosecuting the Cross Appeal but the delay in filing the Notice of Cross Appeal within time was due to the fact that the prosecuting counsel was on a national assignment as a resident counsel with the special task force of the Federal Government set up to implement the anti-corruption program of the Federal Government.
Sequel to the Court’s directive the parties filed their respective written address; the Cross Appellant’s address is filed 22nd of October, 2018 and settled by Rotimi Oyedepo Iseoluwa, Esq who formulated an issue thus:
Whether it is not in the interest of justice to grant this application.?
The applicant submitted that this Court has the discretionary power to grant the application and that it is in the interest of justice. He relied onFEDERAL POLYTECHIC BAUCHI v FARAYOLA (2014) LPELR 23331 (CA) 6; DANA AIRLINES LIMITED v MR YAHUZA YAGE BAMAIYI & ANOR (2017) LPELR 43054 (CA) 18 &19, paras E ? B.
He posit that it is a constitutional right under Section 241 and 242 of the Constitution to appeal, and that sufficient reasons was adduced for the delay in filing the Notice of Appeal and that the grounds of appeal contain good cause why it should be heard. He cited ANYANWU v OKOROAFOR & ORS (2012) LPELR ? 20823 (CA) 49 – 50; SCOA (NIG) PLC v OMATSOLA (2009) 11 NWLR (PT 1151) 106; SAVANNAH BANK (NIG) PLC v CBN (2007) 8 NWLR (PT 1035) 26.
He urged the Court not to visit the consequence of the applicant’s counsel inability to file the Notice of Cross Appeal within time on the Respondent/Cross Appellant. He relied on SOCIETY GENERAL BANK v INTERGLOBAL SERVICES LTD & ANOR (2010) LPELR- 9032 (CA) 15, paras E-F, PROCTER & GAMBLE NIG LTD v NWANNA TRADING STROES LTD (CA) 34, paras C-D; BOWAJE v ADEDIWURA (1976) 6 SC 143; OSINUPEBI v SAIBU (1982) 7 SC 104; AKINPELU v ADEGBORE (2008) 10 NWLR (1996) 531 at 555.
He submitted that though other counsels are in the office while he was on assignment but he conducted the trial at the lower Court and was seized of the facts. Counsel also submitted that the Notice of Cross Appeal shows good cause why the cross appeal must be heard as it contains good grounds. He asked that the Notice be deemed having filed clean copies.
The Appellant/Respondent to the application filed a 16 paragraph counter affidavit filed on 18th of October, 2018 deposed to by Mobolaji Kuti in opposition to the application together with a written address filed on 24th October, 2018 wherein they raised three issues thus:
1. Whether there exists in the applicant any right of cross appeal in a criminal case long after the time limited by law to appeal has lapsed and the Respondent has fully served the term of imprisonment imposed at trial.
2. Assuming without conceding that any right of cross appeal still subsists in Applicant, whether the Applicant has given any valid reasons for the exercise by this Court of its discretion in granting the reliefs sought.
3. Whether the Applicant has shown that there are good or valid grounds for cross appeal against the judgment of the Court below and whether the Applicant has made out a case warranting the grant of all or any of the prayers endorsed on its motion on notice dated 17th October, 2008.
The Appellant/Respondent counsel argued the three issues together in his address. He relied on paragraphs 3 – 13 of the counter affidavit and submitted that appeals of the nature of corruption and related offences are to be expeditiously heard. He referred to paragraphs 2(a) of the practice direction of this Court made pursuant to Section 268 of the Constitution which enables appeals of this sort to be fast tracked under paragraphs 2(b). He also referred to paragraphs 2(c) that appeals are not to be stalled by unpreparedness of parties.
Counsel also submitted that there are no cogent reasons to justify the grant of the relief sought. That the deposition means the appeal is not termed important by the Federal Government hence the counsel was not up and doing and that Criminal Appeals are not taken seriously by the applicant. He submitted that the excuse is not one of inadvertence or delay on the part of counsel but that there is no evidence of desire on the part of the state to cross appeal and that the application is brought in bad faith.
He submitted strongly that the cross appeal is an afterthought, in that the issue here is whether the particular sentence already served by the Appellant/Respondent is justified and not whether any other sentence would have been more appropriate. That the right to cross appeal is not infinite.
Moreover he added, that the fact that there is a substantive appeal should not be a justification for such an application which ordinarily cannot stand on its own. Learned counsel submitted that the cross appeal is an independent appeal. He cited OLOWU v ABOLORE (1993) 5 NWLR (PT 293) 255 – 384.
He said the cases relied upon by applicant were not applicable and the mistake or negligence of counsel does not avail them. He relied on IROEGBU v OKONKWRDU (1990) 6 NWLR (PT 159) 643 at 669; BOWAJE v ADEDIWURA (1976) 6 SC 143; AKINYEDE v THE APPRAISER (1971) 1 ANLR 162; AHMADU v SALAWU (1974) 1 ANLR (PT 2) 318 that the excuse of counsel did not arise from the exercise of professional judgement. He cited MINGI SERVICES LTD v IMAOYE (2003) FWLR (PT 143) 341 at 347; TIWANI LTD v C.T.M.B. LTD (1997) 8 NWLR (PT 515) 140 at 154.
Furthering his argument he referred to paragraph 1 of the supporting affidavit where applicant’s counsel stated that he is one of the prosecuting counsel in the legal department of the EFCC and that on 12/7/2018, one Nnaemeka Omenwa appeared for the Applicant and that the Nnaemeka did not say he was holding brief for applicant’s counsel Rotimi Oyedepo. He submitted that there is therefore no tenable excuse for the counsel, especially as the judgment in question was delivered on 30th April, 2018 in presence of the counsel for applicant, Rotimi Oyedepo, the record of appeal and Appellant’s brief were served on him on the 27th of June, 2018 and 4th July, 2018 respectively, wherein all materials for cross appeal was available but that he chose to wait till 17/10/18 to file cross appeal.
Counsel for the Appellant/Respondent drew the Court’s attention to paragraph 10 of counter affidavit which has not been countered that the applicant’s counsel was seen conducting other matters in Court. He said the application for leave is to delay hearing. He cited OBIESIE v OBIESIE (2007) 16 NWLR (PT 1060)223; MINISTER, OMR v E. L. NIG (2010) 12 NWLR (PT 1208) 261 at 286.
Counsel cited in addition the cases of TARAKU MILLS LTD v SANT ENGR LTD (2008) ALL FWLR (PT 403) 798 at 805; DONGTOE v PLATEAU STATE (2001) 17 NWLR (PT 1227) 567 at 585, para E on the relevance of providing particulars of time and duration of the inhibiting event/circumstances in this appeal the, national assignment but that these were not contained in the affidavit in support of the originating summons.
Finally counsel submitted that an application of this nature is not a formality and that grounds must exist for the exercise of the Court?s discretion. He cited LONG-JOHN & ORS v BLAKK & ORS (1998) LPELR 1791, 18-19, paras G – B; EZECHUKWU v ONWUKA (2006) 2 NWLR (PT 963) 151.
Appellant/Respondent?s counsel urged this Court to take into consideration the doctrine of Autre Fois Acquit and Autre Fois Convict which is a special plea at the bar and that it avails a defendant who has served his sentence.
On the whole he urged the Court to dismiss the application.
For the purposes of this appeal I shall adopt the Respondent/applicant?s sole issue as it is broad and encompasses the issues at stake while taking into account the Appellant/Respondent?s issues.
RESOLUTION
The bone of contention here is whether the applicant is entitled to be allowed to file a Cross Appeal at this time taking into account surrounding circumstances. It is not in dispute that the application is out of time in that the time within which to file a cross appeal has expired and the Respondent has finished serving his sentence. The affidavit in support has provided reason for this delay in paragraph 5 alone:
‘That the delay in filing the cross appellant’s notice of cross appeal within time was due to the fact that I was on national assignment as a resident counsel with the Task force of the Government set up to implement the anti-corruption program of the Federal Government.’
From the records before this Court, the Judgment was delivered on 30th April, 2018, while the Notice of Appeal was filed on 8th June, 2018. The Appellant?s brief was filed on 3rd July, 2018 and fixed for hearing after the legal year vacation in 18th of October, 2018 under Paragraphs 2 (b) and 3 (a) (i) of the Court of Appeal Practice Direction, 2013. The applicant who is the main Respondent in the substantive appeal then filed an application to regularise his brief which he filed on 17/10/18, same date as the motion and the application for enlargement of time to file a Cross Appeal.
As argued by the parties, it is the position of the law that two things are required for an exercise of the Court?s discretion; the reasons for the delay how tenable and whether the grounds of appeal are good grounds of appeal.
The main reason for the delay has been reproduced earlier in this judgment and this has been countered by the Appellant/Respondent in paragraphs 3, 4, 5, 7, 8, 9, 10, 11 & 12 of its counter affidavit thereof and there is no further affidavit in response.
In LONG-JOHN & ORS v BLAKK & ORS (Supra), the Court emphasised that the applicant must establish good, substantial or exceptional reasons or circumstances to explain satisfactorily the delay to justify the grant of an extension.
The essence of fast track is to enable the party?s case who falls within the cases provided for in the practice direction to expedite matters. The Court of Appeal practice direction, 2013 was issued by the President of the Court of Appeal to apply to:
(i) All criminal appeals relating to the offence of Terrorism, Rape, kidnapping, corruption, money laundering and human trafficking.
(ii) Interlocutory appeals challenging the ruling of the Court below on an interlocutory application.
Paragraph 2 of the Practice Direction provides for its objectives and guiding principle:
‘the purpose of this practice direction is to establish a specialized system of case management in the Court of Appeal, that will provide for fair and impartial administration of criminal and civil appeals arising out of cases listed in 3 (a) (i) and (ii) below…’
Furthermore, the practice direction of the Court of Appeal of 2014 specifically names in Paragraph (1) debt appeals, appeals connected with corruption, human trafficking, kidnapping, money laundering, rape, terrorism appeals by or against such national human rights, intelligence, law enforcement, prosecutorial or security agencies such as the EFCC, ICPC, National Human Right Commission, the State Security Services.
Moreover, in paragraph 3 (c) therein it enjoins parties to help the Court to further the fundamental objectives of the practice direction which is to enable the Court to deal with fast track appeal quickly and efficiently. While the Court on its part must also give effect to the fundamental objectives by actively managing cases.
In paragraph 8(10) of the same Practice Direction, 2014 thereof, briefs are deemed closed on the 8th day after the service of the Respondent?s brief, whether or not a reply on points of law has been filed or not forthcoming. Paragraphs 8(11) provides that once briefs are closed or deemed closed, the Court should proceed to set down the appeal for hearing.
From the above it is clear that the conduct of the applicant filing a motion to extend time to file brief is improper and directly against the spirit and intention of the rules. A day in a week has been set apart for such cases and it is expected that the counsel would be diligent in complying with the directions in moving the administration of criminal justice forward but after three months of crucial time woke up from his slumber, it’s no gainsaying that there are several counsels in the EFCC and judicial notice is taking of different counsel appearing for the agency in open Court. I am unable to see my way through in the reasons offered by applicant taking into consideration the strict intention of the rules. He has not disputed that he was present at the delivery of the judgment. It’s trite that government is continuous all over the world; an attempt to separate or customize same will not fly.
Organizations/co-operations is different from personalities. In IWUNZE v FRN (2014) LPELR – 22254 (SC) the Apex Court held thus:
“It must be said once again that rules of Court are to be obeyed. The appellant is at liberty to appeal if he so desires and this can be done by filing an application for extension of time to appeal, supported with an affidavit explaining the reason for the delay. The Courts would readily grant leave to appeal if satisfied that the facts relied on are genuine.”
Also in CHIME & ANOR v ONWUEGBU & ORS (2013) LPELR 20972 (SC) the condition precedent before Court can exercise its discretion to grant prayers for extension of time to seek leave to cross – appeal was enumerated thus:
“Before this Court exercises its discretion to grant the prayers for extension of time to seek leave to cross-appeal, the reason why the application was not filed earlier after the time statutorily allowed for the application must be given. As stated by this Court in ANPP vs Senator Albishir (2010) 9 NWLR (Part 1198) 118 at 152: “The peculiar facts and circumstances of this application is that the res of the action is a governorship seat which is not in perpetuity but for a limited time. Time is of the very essence of the application, while the appeal relates to a pre-election matter – as the election itself took place on the 14th of April, 2007. No Court can exercise its discretion in favor of granting an application to appeal out of time where the reason for the delay to appeal from the affidavit evidence before this Court itself – induced and self-serving which turned out to be a clog in the wheel of timeous litigation.”
Per AKA’AHS, J.S.C ( P. 13, paras. A-D)
This Court in the case ofALRAINE SHIPPING AGENCIES (NIG LTD)/CROSS MARINE & ORS v NIGERIAN SHIPPERS COUNCIL & ANOR (2017) LPELR 41860 (CA) held on conditions to be satisfied by an applicant seeking for extension of time to appeal:
“Under the provisions of Order 7, Rule 10 (2), two (2) conditions have been identified and established over the years by this Court and the Apex Court which have to be satisfied by an Applicant for reliefs such as in the present motion of trinity prayers and for extension of time to appeal to be granted. The conditions are:- (a) That there are good and substantial reasons for the failure to appeal within the prescribed period of time: (b) That there good grounds which prima facie, show good cause why the appeal should be heard. By practice however, another requirement was also recognized, and called for in such application. It is that: – The delay in bringing the application is neither willful nor inordinate. See Okere v. Nlem (1992) 4 NWLR (234) 132: S. B. N. Plc. v. Abdulkadir (1996) 4 NWLR (443) 460: Re: Ojukwu (1998) 5 NWLR (551) 673: Ogbogoro v. Omenuwoma (2005) 1 NWLR (906) 1; Frinam Nig. Ltd v. Ukueku (2006) ALL FWLR (293) 296; Oyegun v. Nzeribe (2010) 16 NWLR (1220) 568; Ede v. Mba (2011) 12 MJSC (Pt. III) 113. The law is settled that the twin conditions set out above, have to be satisfied together or conjunctively by on Applicant to be entitled to the grant of the motion and that failure to satisfy any of them would result in the failure and refusal of the motion. Oba v. Egberongbe (1999) 8 NWLR (615) 485 @ 489-0: SBN Plc v. CBN (2007) 44 WRN, 37 @ 50-1;Ebele v. Ikweki (2012) 15 NWLR (1322) 173:Lafferi Nig. Ltd v. NAL Merchant Bank, Plc(2015) 5 SC (Pt. II) 49. The conditions have to be satisfied by the facts in the Applicant’s affidavit on which he relies in support of the reliefs he seeks from the Court.”
Per GARBA ,J.C.A ( Pp. 11-12, paras. A-C)
Order 6 (6) Court of Appeal Rules, 2016 provides:
‘Where an application for leave to appeal from a decision of the Court below has been brought within the time prescribed by the Court of Appeal Act but has not been heard within that period, the Court, if satisfied that there has not been an unreasonable delay in bringing the application, may extend time to appeal and in proper case grant leave to appeal.’
The apex Court has had to come down hard on counsel and the party themselves in the conduct of cases in NIWA v SPDCN (2008) 13 NWLR (PT 1103) 48.
In NNPC v SAMFADEK & SONS LTD (2018) 7 NWLR (PT 1617) 1, the apex Court per EKO, JSC held thus:
Order 2 Rule 31 of the rules of this Court obligates the applicant in an application for extension of time within which to appeal, firstly; to set forth, in the supporting affidavit, ‘good and substantial reasons for failure to appeal within the prescribed period’ and in addition to establish that the proposed grounds of appeal prima facie shorn good cause why the appeal should be heard.
The applicant, citing IKENTA BEST (NIG) LTD v A.G. RIVERS STATE (2008) 2 – 3 SC (PT 1) 128, (2008) LPELR 1476 (SC), is no doubt aware that he is enjoined, in order to succeed, to meet the simultaneous existence of the two conditions.
Failure to appeal after over 21 years prima facie is evidence of inordinate delay and crass indiligence. The only reason adduced by the instant applicant for delay, in appealing the Court of appeal decision delivered on 27th, May, 1996 in the appeal No. CA/L/214/93, is the unparticularised or non specific and nebulous inadvertence of counsel. The bare faced averment in paragraph 10 (b) of the supporting affidavit runs thus –
That the Appellant/Applicant’s counsel appealed the sister decision in appeal No. CA/L/178/98 & CA/L/214/99 but inadvertently omitted to file a separate Notice of Appeal against the judgment in appeal No. CA/L/214/93.
The decision in appeal No. CA/L/214/93, being the genesis of the final judgment of the trial Court delivered on 20th November, 1993 in suit No. ID/1532/89 from which appeals Nos. CA/L/178/98 and CA/L/214/99 sprang, could not have been a sister appeal of the two subsequent appeals No. CA/L/178/98 & CA/L/214/99.
…The burden of proving the alleged inadvertence of counsel lies on this applicant.
He has to prove the existence of such inadvertence of counsel resulting in this crass indiligence or inordinate delay to appeal a decision after over 21 years, in order to succeed in this application: Section 132 of the Evidence Act, 2011. The burden of first proving the existence or nonexistence of the alleged inadvertence of counsel lies on this applicant, who would fail if no evidence at all were produced on either side: Section 133 Evidence Act. The burden of first introducing this prima facie evidence…falls on the applicant. The reason is obvious: what is alleged without proof can be denied without proof. The Respondent has no burden of disproving any assertion of fact, requiring proof, that is not proved. It is only when a party, who has the initial burden of leading evidence on a particular issue, does so prima facie that he throws the burden of rebutting that evidence on the defendant or respondent to refute or rebut: ESEIGBE v AGHOLOR (1993) 9 NWLR (PT 316) 128 (SC) at 144.
In this application, the applicant has not proved that he took necessary steps and the mere saying that he was occupied with a national assignment without further proof is insufficient reason to warrant the grant of this application.
An intent or instruction is not enough, the litigant; in this case the EFCC must show that it took some measures to ensure that the agency filed its appeal. This is because a litigant, who fails to ascertain if the counsel has taken necessary steps to bring the appeal, is as well negligent.
On the whole upon reasons in the supporting affidavit this Court is unable to grant the application. The application is refused and accordingly dismissed.
MOHAMMED LAWAL GARBA, J.C.A.: I agree.
GABRIEL OMONIYI KOLAWOLE, J.C.A.: I have had the privilege to read in draft the lead Ruling just delivered by my learned brother, ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA wherein he dismissed the Respondent/AppIicant’s Motion on Notice seeking for extension of time within which to cross appeal.
I agree with the calm analysis of the applicable judicial principles based on extant judicial authorities on such application, and of the conclusion reached that the said application (in which the Respondent/Applicant failed to give concrete reasons for the delay in making the application apart from the usual “alibi” we often heard from State’s Prosecutors and Counsel of their being engaged in an unspecified “national assignment” – in terms of its duration, time of commencement and when it ended cannot be used to hoodwink the Court and to mislead it in the undoubted exercise of its judicial discretion which requires that the power be exercised judicially and judiciously by taking into account, the competing interest of both parties to justice) lacks merit and to be dismissed.
I too dismiss the Respondent/Applicant’s application as it lacks merit.
Appearances:
Chief Kanu Agobi, SAN with him, O. Akoni, SAN, M. Kuti and U. NjokuFor Appellant(s)
Rotimi OyetoroFor Respondent(s)
